Freedom of the Press #10
Not Served, Again

Gary Hunt,
Outpost of Freedom
February 27, 2017

As has been reported by Maxine Bernstein’s Tweets (my primary source for keeping track of the doings in the Portland Group 2 trial), I have finally been served with the Order to Show Cause (ECF No. 1901). I say “finally” since the first notice had come from Maxine. Next, I received a FedEx delivery. However, that doesn’t satisfy initial service. So, On Wednesday, February 22, I received a call from my favorite FBI personality. SA Matthew Catalano. He is good natured, diligent in his duties, and appears to have not taken a side in this ongoing battle between Judge Anna J. Brown and the United States’ chief Shyster, Billy J. Williams, on the one side, and yours truly on the other. I had already made plans for Thursday, and he seemed quite busy with other matters, so we agreed to meet on Friday. When we met, he handed me some paperwork, specifically the Order to Show Cause.

Now, as required, he reported to Portland that it had been delivered (note, I didn’t say served), and the Certificate of Service was duly recorded in the Ammon Bundy, et al, trial docket, that afternoon. The text of that Certificate of Service reads as follows:

Pursuant to this Court’s February 16, 2017, Order (ECF No. 1900) the government certifies that on February 24, 2017, FBI Special Agent Matthew Catalano met with third party Gary Hunt and personally served Hunt with a copy of the Order to Show Cause (ECF No. 1901). Agent Catalano had previously sent the Order to Hunt by FedEx. Hunt acknowledged that he had already seen and read the Order. Hunt stated that the Order included a time for him to respond to the Order, which he understood to be for civil contempt. Agent Catalano showed Hunt that there was an option for Hunt to call and request a defense attorney, and Hunt acknowledged this. Although Hunt took the copy of the Order to Show Cause, he stated that he was refusing service ofthe Order.

Now, they did get it right when they stated that I had refused service, though they pointed out that I had taken the Order to Show Cause. I simply want to set the record straight with my notes, taken shortly after the meeting:

Let’s start with the law that explains the potential severity of publication of certain information, in a case similar to what the government and Judge Anna J. Brown are attempting to construct against me. Section 793 (e) of the Espionage Act was cited as the authority by which the government attempted to impose “Prior Restraint” on the New York Times for publishing what was known as the “Pentagon Papers”. The Papers had been leaked to the press by a government employee who had signed a non-disclosure agreement (not just based upon a Protective Order), which precluded that employee from divulging any information protected by Section, 793 (e):

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.… Shall be fined under this title or imprisoned not more than ten years, or both.

There, in a rather large nutshell, is the extent of the government’s authority to impose upon a party limitations in communicating certain information, and/or retaining and/or not delivering it to the government. However, as we shall see, even that did not have the effect implied in the wording of the Act.

To understand the legal limitations of government’s authority, we need to look at New York Times Co. v. United States 403 U.S. 713 (1971). The case taken up by the Supreme Court included a similar action brought against the Washington Post. The cases were joined and the Supreme Court granted certiorari, in which the United States sought to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled “History of U.S. Decision-Making Process on Viet Nam Policy.” Prior to the Supreme Court decision, the District Court for the Southern District of New York, in the New York Times case, and the District Court for the District of Columbia, and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden of proof.

The Second Circuit Court of Appeals overruled the District Court in the New York Times case, putting a stay on publication on June 25, 1971. The Supreme Court then ordered that the stay be vacated.

Now, before we go on, this is not about the source that provided the information to the newspapers. It is solely about the right of the press to publish what it had obtained, regardless of the source. With that in mind, we must take the reader back to a statement in the Supplement Memorandum (linked above), which states:

The government is not seeking the testimony of third-party Gary Hunt to identify the source or sources of the protected discovery information. The government intends to investigate that on its own. The government is merely seeking the removal of protected discovery material that this Court has ordered protected. Nothing about Gary Hunt’s blogging[sic] activities is implicated by the Motion to Show Cause. Third-party Gary Hunt is continuing to disseminate protected discovery material in the face of three Court Orders. No privilege is implicated.

This demonstrates the similarity of the parties in New York Times Co. and the current situation. In neither case is the source of the information sought, though there can be little doubt that in both cases, the government was investigating the source.

IV. There Is No Prior Restraint Issue or Qualified Press Privilege
A. There Is No Prior Restraint Issue Presented Here

This Court has the authority to issue protective orders protecting criminal discovery and, specifically, confidential source information. The substantial government interest in protecting confidential sources is long established. See Roviaro v. United States, 353 U.S. 53 (1957). This substantial government interest is unrelated to any suppression of expression and outweighs Hunt’s First Amendment rights. No one has challenged the legitimacy of the Court’s Protective Order, and to permit a party to end run the order by passing the information to a blogger threatens to undermine criminal discovery and the interests identified in Roviaro—i.e., if we cannot protect the confidentiality of our law enforcement informants, we cannot expect their cooperation in future investigations.

We are not asking this Court to restrain Hunt’s ability generally to write about the case— or even the informants—we only want him to observe this Court’s Order, which means that he cannot publish the discovery material subject to the Court’s Order. This discovery material was not in the public domain in any form. This Court should be able to enforce its Protective Order and prohibit wide dissemination of discovery which includes confidential FBI reports. See Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny). Besides Seattle Times Co. there are no cases that discuss the prior restraint issue in the context of sealed and protected discovery information in the context of a criminal trial. In United States v. Noriega, 917 F.2d 1543 (1990), the issue was the balance between a defendant’s Sixth Amendment Right to a fair trial and the First Amendment interests asserted by CNN. The Noriega Court held that CNN should not be able to violate a court order and litigate at the same time. Hunt has waived any First Amendment defense by defying the Court’s Orders.

Let’s address these underlined items, one at a time. First, we will look at Roviaro. Although I have addressed Roviaro, before, it is worth revisiting, since the government seems to rely heavily upon that decision. Here is what they said:

This Court has the authority to issue protective orders protecting criminal discovery and, specifically, confidential source information.The substantial government interest in protecting confidential sources is long established. See Roviaro v. United States, 353 U.S. 53 (1957)

The government asserts that they have a right to protect the identity of informants with a protective order. They have made this assertion, before, though they appear to have not yet read the decision nor understand the ramifications.

These events were preceded by a number of articles that I had written in the “Burns Chronicles” series. In those articles, I exposed FBI informants associated with the occupation of the Malheur National Wildlife Refuge outside of Burns, Oregon. The information used to identify and expose the informants was derived from some Discovery documents I had obtained.

The original Protective Order, dated March 24, 2016, lays out the restrictions placed upon certain described individuals. Those prohibited from “disseminating” information contained in the Discovery are described in that Protective Order:

ORDERED that, pursuant to Rule 16(d)(1) of the Federal Rules of Criminal Procedure, defense counsel may provide copies of discovery only to the following individuals:

(1) The defendants in this case;

(2) Persons employed by the attorney of record who are necessary to assist counsel of record in preparation for trial or other proceedings in this case; and

(3) Persons who defense counsel deems necessary to further legitimate investigation and preparation of this case.

Pamala R. Holsinger, Assistant United States Attorneys, hereby moves this Court for an order enforcing the Protective Order against a third party illegally in possession ofprotected sensitive discovery materials in this case.

Now, the wording of the Protective Order says nothing about a third party, nor does it say anything about the possession of the material is illegal. If it were illegal, it would be against the law. However, you can only be in violation of a Protective Order if you are among those to which the Order applies.

The government makes a rather interesting statement in that Motion, “This Court has jurisdiction to enjoin a non-party from disseminating confidentialdocuments produced in reliance upon and subject to this Court’s Protective Order.” However, they cite a Second Circuit Court decision, Eli Lilly & Co. v. Gottstein, 617 F.3d 186, which I addressed in a subsequent article. It does not corroborate their claim, to the contrary, it supports the limited jurisdiction that I had already stated exists.

The Motion is supported by an Affidavit, of the same date. That Affidavit refers to some of my articles. In so doing, they have entered those articles, which would include the entire series, into the Court’s record. Those specifically mentioned were from “Burns Chronicles”, to include #40, #41, and #49. Also quoted is my statement regarding the “prohibited material” taken from #40. That statement serves as prima facie evidence of my intent. But, the government is insistent upon twisting the truth, in order to create a wholly different characterization of my actions. This would allow them to charge culpability on my part.

Let’s get to the heart of the matter. To do so, I will be referring to FBI documents that I have obtained. They are marked, at the bottom left comer, “Dissemination Limited by Court Order”. So, let me make this perfectly clear- I have no intention of “disseminating” the documents, nor am I bound by any “Court Order”. I am writing about a Public Trial, which was held in September and October 2016

I had been working on a response to that Affidavit and its erroneous presumptions, though I never completed it (maybe I will, when time allows), when the government came back with a Supplemental Memorandum in Support of Motion to Enforce Protective Order, dated January 10, 2017. That Motion has a rather interesting statement made when they refer to the Affidavit filed in support of the Motion. It states:

In a Facebook post regarding the FBI’s February 5, 2017, visit to Gary Hunt to serve the cease and desist letter, a person asks “who is Gary Hunt?” On defendant Duane Ehmer’s Facebook account a response is posted, “He is working with our lawyers.”

On January 6, 2017, another individual posted a question on that same page asking “Who is Gary Hunt?” That same day, the message “He is working with our lawyers” was posted in reply from defendant Duane EHMER’s Facebook account. Sarah Redd-Buck and Duane EHMER’s Facebook accounts are not private and can be viewed by anyone accessing Facebook.

So, the Motion states, “He is working with our Lawyers” is a response to the question, “Who is Gary Hunt?”

On the other hand, the Affidavit states “a question on that same page asking, “Who is Gary Hunt?”. Then states, “He is working with our lawyers” were posted in reply from defendant Duane EHMER’s Facebook account.”

Now, there is a subtle difference between the two, however, the Affidavit is more accurate than the statement made on the Motion. Perhaps we should go to the source and see what was really said (this image is taken from the Affidavit):

Well, son of a gun, the question was actually asked a full 17 minutes after it was answered. Who would believe that the FBI (Ronnie Walker) and the US Shyster (See Freedom of the Press #6 – “Tilting at Windmills” – Redux) would attempt to mislead the Judge? This sequence begs a question, just to whom is Ehmer referring to by “He”?

Freedom of the Press #6
“Tilting at Windmills” – Redux

Gary Hunt
Outpost of Freedom
February 08, 2017

I have noticed over the years, that some believe in quality, as I do, and others believe in quantity. They think that throwing out a massive missive will drown the opposition in, well, paper. It appears this is the new approach by the United States Attorney, and minions, from Portland, Oregon. They have, with their most recent filing (Supplemental Memorandum in Support of Government’s Motion For an Order to Show Cause), on February 7, exceeded all my expectations, in terms of quantity. They have cited 30 court decisions. I have reviewed five of the cited cases, though I will comment on more of them. Since their research is of such poor quality, It would be my pleasure to review cases for them in the future. However, if I work for the government, my prices will not be discounted. Considering how poorly their current hired help performs, it just might be worthwhile for them to get it right, for a change.

Now, let’s get on with the boring stuff. However, there will be some really good stuff towards the end.

They begin the Memorandum with a statement of what it will address:

1. The District of Oregon is the proper venue for this Court to enforce its own Protective Order against a third party;

2. Third-party Gary Hunt should be held in Civil Contempt of this Court’s Orders after he has had an opportunity to appear and Show Cause why he should not be held in contempt;

3. There is a factual basis to conclude by clear and convincing evidence that third party Gary Hunt is aiding and abetting a defendant (or defendants) in this case in violating the Court’s original Protective Order (ECF No. 342), the new Order (ECF No. 1691), and the Supplement to the original Protective Order (ECF No. 1692); and

4. There are no prior restraint issues or “press” privilege issues.

So, we will begin with Part I. Under the heading in the Memorandum:

I. The District of Oregon Is the Only Proper Venue for This Court to Enforce Its Own Orders

A. Proper Venue Under the Law

The first case cited is:

Myers v. United States, 264 U.S. 95, 101 (1924). The Supreme Court in Myers held that venue is only proper where the court rendered the decree sought to be enforced.

Well, I did look that one up and here is what I found:

An information charged that plaintiffs in error willfully disobeyed the injunction lawfully issued in equity cause, St. Louis, San Francisco Railway Company, Complainant, v. International Association of Machinists, et al., Defendants, pending in the Western Division of the Western District of Missouri, by attempting, within the Southwestern Division of the same District, to prevent certain railroad employees from continuing at work. The order ran against men on strike, and the cause is treated as one within the purview of the Clayton Act.

Well, that supports my position. The case was in “Western Division of the Western District of Missouri”, however, the other jurisdiction mentioned was in the “Southwestern Division of the same District.”

Now, that “Clayton Act” does come under the Commerce Clause of the Constitution, since it deals with the Sherman Antitrust Act.

Clayton Antitrust Act is an amendment passed by U.S. Congress in 1914 that provides further clarification and substance to the Sherman AntitrustAct of 1890 on topics such as price discrimination, price fixing, and unfair business practices.

Burns Chronicles No 57Collusion or Conspiracy?

Gary Hunt
Outpost of Freedom
February 4, 2017

On October 27, 2016, shortly after the very just verdict of “Not Guilty” was announced in the Ammon Bundy, et al, Group 1 trial, a meeting was held in the Mark O. Hatfield Federal District Courthouse. The 12 jurors, Judge Anna Brown, and a court reporter, attended the meeting. It lasted about one and a half hours.

It is my understanding that such a meeting is not unusual. However, circumstances surrounding this particular meeting are, to say the least, quite unusual, considering context. That is exactly what we are going to do.

The first irregularity occurred when the Prosecutor moved to have the trial declared “complex”, which allowed the Court to circumvent the right to a speedy trial and to break the defendants up into two groups. The first Group (mostly leaders) was tried in September and October 2016, and the second Group to be tried beginning in February 2017. While the delayed trial date was agreeable, as the Defendants needed the additional time to prepare their defense, one drawback is that many of the Defendants were held in custody until the verdict was reached, in the first trial. The latter trial date made the government’s case easier, as they had smaller groups to try, and it gave time to elicit plea bargains, thereby reducing the number who would be prosecuted at trial.

Next, during the pre-trial “paper chase”, with hundreds of motions filed, answered, and finally ruled on, there is no doubt that bias existed on the part of Judge Anna Brown. Behind the scenes, many of us followed this legal maneuvering for months. It seemed that even when the arguments presented by the defense were well supported, Judge Brown would still rule against the defense and in favor the Prosecution.

During the trial, there were rather strict rules imposed on the defense, especially when they sought to call additional witnesses to testify. Judge Brown ruled that to allow that would be “repetitive”. However, the prosecution showed a 1-minute video of approximately twenty of the occupiers firing across a canal. The fact that the Prosecution showed that footage four times, however, was not considered “repetitive”.

Finally, and here we get to the meeting, Judge Brown called all of the participating jurors into the meeting, after dismissing the alternate jurors. In that meeting, she explained that she would answer their questions, if they had any. She also asks some questions, and explained that the answers would help the prosecution and the defense. So, just how could it help the defense? The Defense prevailed. It could only help the Prosecution gain insight into the jurors’ minds in order to determine what they would need to overcome to obtain guilty verdicts in the Group 2 trial.

Some jurors indicated that had the charges been less serious, like simple “misdemeanor trespass”, it would have been much easier to render a guilty verdict.

Let me interrupt, for a moment, and point out that the Judge holds office under Article III (Judicial Branch of Government), and is, in essence, an impartial referee. Her job is to “administer law in a court of justice”, “to control the proceedings”, and to make “decisions of questions of law or discretion”. Her job is not to favor one side over the other, but rather to stand aside, interjecting only to the extent necessary to assure a fair trial.

The Bundy Affair #20
The Invisible Witness

Gary Hunt
Outpost of Freedom
February 2, 2017

I have been so busy writing about the goings on in Oregon that I haven’t had much opportunity to consider the situation in Nevada. As I have told those that I been working with regarding the Group 1 trial in Oregon, who have all started concentrating their efforts in Nevada. I told those who I had been working with in Oregon, “You all get to work down where it is warm and sunny, while I’m still stuck up here where there is snow on the ground, and it is cold.” Seriously, however, I am in Northern California, about halfway between the two. But, I was spending my time primarily on the Oregon, Ammon Bundy, et al, case.

Then, the government filed a Motion. Upon reading the Motion, I found that the US Attorney has decided to invite me down to Nevada, an offer I couldn’t refuse.

Events subsequently in the courtroom and in the United States v. Ammon Bundy, et al. case in Oregon have shown that the danger to the lone UCE witness in the government’s case is particularly great. Although the discovery information in United States v. Bundy was restricted due to a protective order, an associate of the defendants (including some of the seven common defendants in the Nevada case), Gary Hunt, posted discovery material to “out” confidential human sources to his webpage. Litigation is ongoing in the District of Oregon to remove the information from the web. See, e.g., Order Granting in Part Government’s Motion to Enforce Protective Order, United States v. Bundy, Case No. 3:16-cr-00051-BR (D. Or. Jan. 11, 2017).

Now, some might think that this doesn’t look like an invitation, but, after all, beauty is in the eye of the beholder. I see that the United States Government Railroad (USGRR) is in full operation, and flying down the tracks at breakneck speed.

So, getting started in catching up with the USGRR, you will note that they imply a threat when they state that the events in Oregon “have shown that the danger to the lone UCE witness in the government’s case is particularly great.” On the contrary, they have shown that there is no risk, at all, to the informants in the Oregon occupation — unless you consider that most of the informants have abandoned their old phone numbers, and are not accessible by phone, anymore.

Let’s look at some facts about this alleged “danger”. On September 21, 2016, AUSA Gabriel, in questioning OSP officer Jeremiah Beckert, asked, “And did you have information about whether the driver [Mark McConnell] was cooperating with the Government?” Beckert answered in the affirmative, and of its own volition, the government hung one of its informants out to face, what, serious bodily harm? Death? Well, that did not happen. And, the government put this informant at risk. That very act disputes the government’s entire argument regarding the potential threat to any of the informants.